I put myself in the former camp, but had never given much thought to the genesis of the “living Constitution” theory. When and how did it arise? My supposition had been that it was a creation of the “progressives” in our legal system early in the last century, exemplified by Justice Oliver Wendell Holmes and liberal intellectuals who favored Franklin D. Roosevelt’s vast expansion of federal authority.
That view is not exactly right, argues John Compton, assistant professor of political science at Chapman University, in his new book, The Evangelical Origins of the Living Constitution. Compton argues that the “living Constitution” idea arose much earlier in our history, an outgrowth of the moral reform movement that swept across the United States from the 1820s until the early decades of the 20th century.
Alcohol and lotteries / Zealous champions of moral reform, then as today, thought that a proper function of the law was to eradicate vice and immorality. They were stymied, however, by the Constitution’s limits on governmental power. Compton explains, “For while the designers of the American constitutional order did not set out with the aim of inhibiting the moral development of future generations, they did envision a republic whose fundamental law would hinder efforts to interfere with settled property rights or restrict the flow of goods in interstate markets.” But that was exactly what anti-liquor and anti-lottery forces wanted—for the law to declare that there could be no legitimate property rights in alcoholic beverages or lottery tickets and to block their flow in markets altogether.
Compton’s history is compelling. The tension between moral reformers, who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry), and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.
The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in. Progressives argued that if the Court could interpret the Constitution to allow federal legislation when it came to the alleged harms of alcohol and gambling, it should do the same with regard to child labor laws, unionization, wage and price controls, and similar issues. Eventually, they prevailed.
In Compton’s well-researched narrative, the young American nation was one of rather relaxed religious and moral sensibilities. Church affiliation was in decline and few people saw the consumption of alcoholic drink to be a vice in and of itself. One fascinating detail Compton mentions is that Post Office employees had to work on Sundays. That brought down the wrath of many religiously minded people, but judges blocked every effort at halting this violation of the Sabbath.
Beginning in the 1820s, however, a wave of religious fervor spread across the nation. While some reformers were content just to denounce what they viewed as immorality and persuade people to give up their vices, others insisted on employing government power. In 1851, Maine became the first state to enact a prohibition against the production and sale of alcoholic beverages, and by 1856 a dozen states had such laws. In some states they were struck down by the courts, but in others they were upheld on the grounds that individuals’ property rights had to fall before “the greater right of the community.”
Easing the shoe / After the Civil War, litigation over the banning of liquor continued, but the biggest legal cases involved gambling. In early America, lotteries had been viewed benignly. By the 1860s, however, campaigns to stop them were alive in every state. Particularly interesting—even amusing—were the efforts against the Louisiana Lottery, a company that earned good profits in the lottery business. The battle between the company and its opponents went on for decades, culminating in the U.S. Supreme Court’s 1903 decision in Champion v. Ames.
At issue was the constitutionality of a federal statute prohibiting the interstate transportation of lottery tickets. Counsel for the lottery industry argued that the law obliterated the longstanding distinction between interstate commerce, which pertained to the movement of tangible goods, and “police power” measures intended to regulate morals. Congress had never been thought to possess authority of the latter kind and therefore it seemed the statute would be declared unconstitutional.
Champion was vigorously contested. The Court heard arguments three times before a majority emerged in favor of upholding the statute. Justice John Marshall Harlan declared that because “lotteries were offensive to the entire people of the Nation,” the statute should be allowed to stand. And even if the anti-lottery statute might be a surreptitious expansion of federal authority into an area traditionally reserved to the states, he wrote that the Court must not inquire into the motives of the legislators. The “living Constitution” concept had triumphed.
The dissenters, led by Chief Justice Melville Fuller, saw ominous implications in the decision. Simply to accommodate public opinion, the Court had illegitimately expanded the scope of federal power. Having once given in to the idea that America’s “fundamental law is flexible,” Fuller foresaw that the Court would succumb to the same pressure again and again. If the Court bowed to demands “to ease the shoe where it pinches,” he argued, then eventually nothing but the shell of the Constitution’s limitations on governmental power would remain.
Breaking the firewalls / Events would prove Fuller right, although not immediately. For quite a few years, the Court held to pre-Champion concepts about the boundaries of state and federal authority when it came to business and economic issues. In the famous 1905 case Lochner v. New York, for example, the Court struck down a statute that limited the number of hours a baker could work, despite a vigorous dissent from Justice Holmes that state governments should be able to act for the public good and put a ceiling on the number of hours a person could work. In Adair v. U.S. in 1908, the Court, per Justice Harlan, declared that Congress had no authority to enact a law against “yellow dog contracts”—that is, contracts whereby employees agreed not to join a labor union. And in 1918, Hammer v. Dagenhart struck down the federal statute prohibiting items produced with child labor from moving in interstate commerce.
Those decisions and others that said “no” to progressive social and economic legislation were vociferously denounced as hypocritical by many legal and economic commentators. How could the Court side with business in cases like Lochner, Adair, and Hammer after conceding that government has the power to ban the evils of lottery tickets and demon rum?
The Court’s “firewalls” against letting its pro-regulation rulings in liquor and lottery cases spill over into economic controversies held through the 1920s. But once the nation was mired in the Depression, the pressure on them became too great. The breakthrough case was Blaisdell v. Savings and Loan in 1934. Minnesota’s legislature had enacted a moratorium on mortgage foreclosures, a populist measure that reflected the “little guy versus moneyed interests” spirit of the times. The problem was that it ran straight into the Constitution’s prohibition against laws impairing the obligation of contracts.
Just a few years earlier, such a law would have never been suggested and, had one passed, the Court would have had no trouble invalidating it. In 1934, however, things were different. Would the Court find a way of upholding a law that was so clearly at odds with anything resembling an originalist reading?
It did. Citing the earlier lottery decision, Chief Justice Charles Evans Hughes wrote that the Contracts Clause could be “qualified” when a state needed to “safeguard the interests of its people.” He acknowledged that the ruling might not fit with the original intent of the clause, but was consonant with the Constitution’s “essential spirit.” Thus, with some verbal arabesques, Hughes sanctified the “living Constitution” approach in economic and business issues.
Until this point, Compton gives his readers scarcely a hint whether he is sympathetic to one side or the other. Here he drops the veil of objectivity, writing in defense of the Blaisdell decision that Hughes “was actually attempting to provide a new theoretical foundation for a clause that had long ago been severed from its original purposes.” I cannot agree. The Chief Justice was not looking for anything other than an excuse for avoiding a very unpopular decision. Blaisdell only meant that the Court would turn a blind eye to the plain meaning of the Contracts Clause if a large majority wanted government to favor debtors over creditors.
In 1935 and 1936, the Court held fast to the “un-living” concepts of federalism in striking down some major New Deal laws. In 1937, however, the dam broke when the Court upheld the National Labor Relations Act in a decision that eviscerated the distinction between intrastate and interstate commerce. Subsequently, the Court rubber-stamped the Fair Labor Standards Act, the Agricultural Adjustment Act, and other pillars of the New Deal.
Conclusion / Fuller’s concern in his Champion dissent has been amply borne out. “Living Constitution” jurisprudence has led to almost unchecked growth of government power. Ironically, while America is back to our early indifference toward liquor and gambling, we are caught fast in the web of economic regulation that was made possible by the precedents established in the “morals” cases.
Perhaps Compton overplays his argument that the tension between the Court’s permissive liquor and lottery decisions on the one hand and the Constitution’s limits on government power on the other made it inevitable that the latter would eventually yield. After all, the justices continued to strike down interventionist legislation throughout the 1920s, ignoring the “hypocrisy!” criticism from the progressives when they did so. It was not until the Depression that the Court began retreating from its property rights, contract, and federalism defenses against legislation like that at issue in Blaisdell. If not for the Depression, those defenses might still stand.
Nevertheless, this is a fascinating book that sheds much light on how our views on the proper scope of government have changed.
